Marijuana dispensary curbs likely to stand

STATE SUPREME COURT Justices seem to side with cities on dispensary bans

Updated 4:28 pm, Tuesday, February 5, 2013

The California Supreme Court left little doubt Tuesday that it would uphold the authority of local governments, including more than two dozen in the Bay Area, to ban medical marijuana dispensaries within their borders.

At a one-hour hearing at the University of San Francisco, a lawyer for a pot supplier in Riverside - one of about 200 cities and counties in the state that have outlawed dispensaries - argued that such ordinances conflict with state laws that allow medical use of marijuana.

Local government authority to regulate land use has never extended to "totally banning activity which is lawful under state law," attorney J. David Nick told the court. He said a dispensary ban frustrates the goal of a 1996 medical marijuana initiative and 2003 legislation "to make this available throughout the state."

But Justice Goodwin Liu said the state laws appeared to be designed to protect medical marijuana patients from criminal prosecution without restricting local authority to decide whether to probit dispensaries within city or county borders. Justice Carol Corrigan said the marijuana laws do not limit local governments' powers, under zoning laws, "to control what happens in their own community."

The only sign of disagreement came from Justice Kathryn Mickle Werdegar, who said the 1996 initiative - formally titled the Compassionate Use Act - and the follow-up 2003 legislation were intended to "make this substance available, compassionately."

Riverside's lawyer Joseph Dunn noted that the 2003 law authorized local governments to "regulate" pot dispensaries, and said the term should be interpreted to include prohibition. Werdegar called his definition "debatable."

A ruling is due within 90 days.

The dispute arises from the 1996 initiative, the first in any state to legalize medical marijuana, and its failure to spell out how the drug should be distributed. The 2003 legislation authorized patients to form cooperatives or collectives to grow marijuana, but did not define the limits of local regulation.

The federal government has fought the medical marijuana law since voters approved it. Federal prosecutors under the Obama administration have shut down hundreds of dispensaries by threatening to confiscate their landlords' property.

In the Bay Area, San Francisco, Oakland and San Jose, among others, authorize and regulate marijuana dispensaries.

Among the cities that ban them, according to the medical marijuana advocacy group Americans for Safe Access, are Alameda, Colma, Concord, El Cerrito, Emeryville, Fremont, Hayward, Los Gatos, Millbrae, Newark, Pittsburg, Redwood City, San Bruno, San Rafael, South San Francisco, Sunnyvale and Union City.

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